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HQ W968193




September 7, 2006

CLA-2 RR:CTF:TCM 968193 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6116.93.9400

John B. Pellegrini, Esq.
McGuireWoods LLP
1345 Avenue of the Americas
New York, NY 10105-0106

RE: Reconsideration of NY M81143; classification of gloves from China

Dear Mr. Pellegrini:

This is in reply to your letter dated April 19, 2006, on behalf of Paris Asia, Ltd., to the Office of Regulations and Rulings requesting reconsideration of New York Ruling Letter (“NY”) M81143, dated April 7, 2006, on the classification of gloves from China.

You provided a sample of the gloves and a laboratory report relevant to the gloves’ waterproof barrier on April 27, 2006. You supplemented your earlier submission with another letter dated May 15, 2006. You provided samples of other gloves that you asserted were materially identical to the gloves at issue in this matter on June 28, 2006. We conducted an oral discussion of the issues involved in this matter on July 7, 2006.

Pursuant to your reconsideration request, we have reviewed NY M81143. This ruling, HQ 968193, affirms the holding in NY M81143.

FACTS:

The gloves at issue in NY M81143 are described in that ruling as follows:

Style 20362928 is an (sic) labeled men’s glove constructed of a camouflage printed polyester fleece fabric. The submitted size medium glove features a heavyweight berber fleece lining. The glove is bulky in its general appearance and fit. The item will be sold on a display hanger with the “Outfitters Ridge” name. Additional features include an inner waterproof barrier, a coated fabric overlay at the center of the palm extending to the thumb, fourchettes, a hook and clasp, an elasticized wrist, backside inner padded knuckle reinforcement, and a hemmed bottom. The glove will also be available in youth sizes as Style 20362928Y.

In NY M81143, the Bureau of Customs and Border Protection (“CBP”) classified the gloves at issue, identified as Style 20362928 and Style 20362928Y, in subheading 6116.93.9400, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for: “Gloves, mittens and mitts, knitted or crocheted: Other: Of synthetic fibers: Other: Other: With fourchettes.”

In your April 19, 2006 request for reconsideration, as in your original ruling request, you assert that the gloves are classified in subheading 6116.93.0800, HTSUSA, which provides for: “Gloves, mittens and mitts, knitted or crocheted: Other: Of synthetic fibers: Other gloves, mittens and mitts, all the foregoing specially designed for use in sports, including ski and snowmobile gloves, mittens and mitts” because the gloves are specially designed for the sport of hunting. However, in your May 15, 2006 supplemental letter, you assert that the gloves are classified in subheading 6116.93.0800, HTSUSA, because they are specifically designed for the sport of skiing.

ISSUE:

What is the classification of the gloves identified as Style 20362928 and Style 20362928Y?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

It is undisputed in this matter that the gloves at issue are classified in subheading 6116.93, HTSUSA, which provides for: “Gloves, mittens and mitts, knitted or crocheted: Other: Of synthetic fibers.” Classification beyond the six-digit level is disputed. Specifically, this case turns on whether the gloves at issue are specifically designed for use in sports and, therefore, classified in subheading 6116.93.0800, HTSUSA. In both your April 19, 2006 and May 15, 2006 letters, you assert that the gloves at issue are classified in subheading 6116.93.0800, HTSUSA, although you posit that they are specially designed for different sports in each letter.

In classification cases, it is well established that whether an article is "specially designed" or "specially constructed" for a particular purpose may be determined by an examination of the article itself, its capabilities, and its actual use or uses. See cases cited in Porter v. United States, 76 Cust. Ct. 97, 103 (C.C.P.A. 1976). It is equally clear that a sample of the merchandise is a potent witness. See United States v. The Halle Bros. Co., 20 CCPA 219, T.D. 45995 (1932); United States v. Fred. Gretsch Mfg. Co., Inc., 28 CCPA 26, C.A.D. 120 (1940).

In determining whether gloves are specially designed for use in sports, CBP considers the connection the gloves have to an identified sporting activity, the features designed for that sporting activity, and how the gloves are marketed, advertised and sold in relation to the named sport. See Headquarters Ruling Letter (“HQ”) 965870, on the classification of “hunter orange” gloves issued to you on October 8, 2002. In considering whether a glove’s features make it “specifically designed for use” in a sport, CBP evaluates the glove as a whole to determine if its collective physical features make the glove “specially designed” for use in a certain sport. See generally HQ 089769, on the classification of cold weather gloves, issued October 8, 1991, and HQ 964901, dated January 31, 2002, on the classification of several models of gloves. A glove that is “specially designed” for use in a certain sport will have special features that adapt it to that sport and these features will distinguish it from ordinary gloves. The fact that a glove could possibly be used in a certain sport is not enough to make it “specially designed” for a certain sport. See HQ 965870.

CBP considers hunting a “sport” and has recognized that certain features are indicative of a special design for hunting. See HQ 965870 and HQ 964901. These features have included:

Non-skid reinforcements on the palmside and shooting fingers which aid in safely gripping and firing a rifle (See HQ 089769); A tapered index finger for easier finger tip access to the trigger (See HQ 957042, dated January 18, 1995); An “action back” design created by two deep 1/2-inch pleats that open up and are spaced 2 inches apart which allows greater hand flexibility and grip (See HQ 957042); A “Toughtek” palm which is a textured surface which imparts a non-slip grip and allows the glove to remain soft and pliable in all types of weather (See HQ 957042); A non-bulky fit that does not inhibit crucial sensitivity and movement of the trigger finger, which is necessary to the handling of a gun (See HQ 089769); An outer shell in a camouflage or high-visibility pattern or color (See HQ 089769); and A polyurethane-coated fabric palm to enhance grip, a tight fit to facilitate handling ammunition, and/or gel inserts to protect against recoil (See HQ 965131, dated October 25, 2001).

In your April 19, 2006 letter, you asserted that the gloves at issue are specially design for use in hunting. In our oral conference, you stated that the special design was attributable to the gloves’ outer shell having a camouflage pattern. You also emphasized that the gloves were to be sold in the hunting department of a national department store under trademarks associated with hunting apparel and camouflage patterns. The gloves’ hangtags display these trademarks.

As stated in HQ 089769, CBP does consider camouflage as being traditionally associated with hunting. Yet, the pattern of the outer shell is not enough to impart a “special design” for hunting to the gloves. See HQ 089769, HQ 088386, dated May 31, 1991, and HQ 085642, dated October 17, 1989, in each of which gloves with camouflage patterns were not classified as gloves specially designed for hunting. The fact that gloves will be sold in a store’s hunting department under trademarks associated with hunting, while also indicative, is not enough to impart a special design for hunting to gloves that have no physical features associated with hunting other than a camouflage outer shell. The gloves’ remaining features are those normally associated with ordinary general use cold weather gloves including a polyester fleece construction, a bulky fit, an elasticized wrist, and a coated fabric overlay on the palmside. In light of the above, the gloves are not classified in subheading 6116.93.0800, HTSUSA, as specially designed for use in hunting.

CBP has recognized that certain glove features are indicative of a special design for skiing. In considering whether gloves have a special design for skiing, CBP has consistently referenced Stonewall Trading Company v. United States, 64 Cust. Ct. 482, C.D. 4023 (1970) as a guideline. See e.g., HQ 082336, dated November 21, 1988, HQ 085642, HQ 088386, HQ 089769, HQ 089589, dated August 19, 1991, and HQ 953629, dated July 8, 1993. In Stonewall, the Court held that certain vinyl gloves were classifiable as "other ski equipment" in item 734.97, TSUS, (now provided for in various subheadings in the HTSUSA) because the gloves were deemed to have been specially designed for use as ski gloves because they had the following features:

A hook and clasp to hold the gloves together; An extra piece of vinyl stitched along the thumb to meet the stress caused by the flexing of the knuckles when the skier grasps the ski pole; An extra piece of vinyl with padding reinforcement and an inside stitching which is securely stitched across the middle of the glove where the knuckles bend and cause stress; and Cuffs with an elastic gauntlet to hold the gloves firm around the wrist so as to be waterproof and to keep it securely on the hand.

It is important to recognize that these criteria are not prerequisites mandated of all ski gloves. Rather, they provide a guideline intended to aid in determining whether certain gloves have been designed for use in skiing. These criteria are neither mandatory, nor all-inclusive, and a case-by-case analysis will be used by CBP in determining whether a glove's design merits classification as a ski glove. See HQ 082336, in which CBP stated that, "[t]he fact that the court found certain gloves to be classifiable as other ski equipment cannot be construed as either a limitation or as a blanket approval for any gloves that possess such [the same] features." In HQ 951294, dated August 28, 1992, CBP elaborated, stating, “[w]e further note that even if a glove were to possess all the features enumerated [as the gloves in Stonewall], it would not definitively serve to classify the glove as a ski glove; a glove may possess all these features and still be deemed unacceptable for use as a ski glove.”

The Stonewall Court created a rebuttable presumption that a glove possessing all four of the enumerated characteristics has been designed as a ski glove. See HQ 951294 and HQ 953629. CBP may consider other factors which effectively refute this presumption. Such factors may include whether the gloves are functionally practicable for use in skiing, whether the gloves appear suitable for use in skiing, and whether the gloves are marketed as ski gloves. While a glove's appearance, and the manner in which it is marketed, are certainly indicators of classification, it is the glove's suitability for use in skiing that is determinative of whether classification as a ski glove is proper. In other words, even if the Stonewall characteristics have been met, a glove is not classifiable as a ski glove if it is not functionally practicable for use as such. See HQ 951294 and HQ 953629.

Our examination of the gloves at issue indicates that while the gloves may technically meet the guidelines set forth in Stonewall, the gloves are nevertheless ill-suited for use in skiing for several reasons. First, the gloves’ bulky fit makes grasping and holding poles difficult. The fingers, especially when bent, lack form and excess fabric accumulates in the fingertip area, reducing dexterity and sensitivity. Second, the gloves’ outer shell is made of knit polyester fleece. While the gloves do have an inner waterproof barrier under their outer shell, the shell itself absorbs and holds water. Obviously, this is not an acceptable characteristic for a ski glove. Third, the knit cuffs and elasticized wrists on these gloves are not sufficiently tight to prevent snow and water from entering the gloves. For the aforegoing reasons, it is clear that these gloves are not functionally practical for use in skiing. You also stated that the gloves are not marketed as ski gloves, but as hunting gloves. These factors refute that the gloves at issue are specially designed for use as ski gloves. Accordingly, the gloves at issue are not classified in subheading 6116.93.0800, HTSUSA, as specially designed for use in skiing.

Style 20362928 and Style 20362928Y are not specifically designed for use in the sport of hunting or the sport of skiing. The gloves collective physical features do not adapt them to either sport, nor distinguish them from ordinary knit polyester fleece gloves. As a result, the gloves at issue are not classified in subheading 6116.93.0800, HTSUSA, but in subheading 6116.93.9400, HTSUSA.

We note that we did not find the gloves at issue to be materially identical to any of the samples that you provided to us on June 28, 2006, which you stated CBP had previously classified as being “specially designed for use in sports.” All of the samples of other gloves had features such as gauntlet cuffs, hook-and-loop straps around the wrists, cord closures around the wrists, etc. that the gloves at issue in this matter do not.

HOLDING:

The gloves identified as Style 20362928 and Style 20362928Y are classified in subheading 6116.93.9400, HTSUSA, which provides for: “Gloves, mittens and mitts, knitted or crocheted: Other: Of synthetic fibers: Other: Other: With fourchettes.” The applicable column one, general duty rate under the 2006 HTSUSA is 18.6% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

The gloves fall within textile category designation 631. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (“WTO”) member countries. The textile category number above applies to merchandise produced in non-WTO member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

EFFECT ON OTHER RULINGS:

NY M81143, dated April 7, 2006, is affirmed.

Sincerely,

Myles B. Harmon, Director

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